Arizona bills a test of federal government authority

Some Arizona lawmakers are tired of the federal government telling the state what to do.

They don't believe federal requirements, Supreme Court rulings or decades of precedent are good reasons to require state taxpayers to pay to educate illegal immigrants or provide them with health care. And, this year, they're doing something about it.

Lawmakers have proposed more than a dozen bills that attempt to reassert states' rights or fix problems they say the federal government hasn't addressed. The bills would allow Arizona to build its own wall along the Mexican border, change how it issues birth certificates to the children of illegal immigrants and create a committee that would tell the state which federal laws it should ignore.

Opponents warn that many of these efforts, if they become law, will likely face federal lawsuits challenging their constitutionality. But that threat didn't deter the Legislature from passing Senate Bill 1070 last year and doesn't seem to be slowing momentum for these bills this year. Many of the bills have passed their first legislative-committee hurdle.

"Virtually everyone agrees that the status quo is unacceptable, except for the federal government," said Sen. Rick Murphy, R-Peoria. "How many years should we wait before we fix the problem ourselves or at least make an effort to do so?"

The effort

Over the past year, Arizona has fought a federal lawsuit challenging the constitutionality of SB 1070, filed its own countersuit alleging the federal government has failed in its duties to secure the border and joined 25 other states in a lawsuit saying the federal government cannot force people to buy health care.

Paul Bender, professor of law and dean emeritus at Arizona State University's Sandra Day O'Connor College of Law, said these efforts seem consistent with an emerging combative trend at the Legislature to confront the federal government through state legislation that seems designed to provoke a legal battle.

"You can't have a country if the component parts of the country feel that they can disregard the central law when they don't like it," Bender said. "Being part of the system means that while you are going to disagree with things that the central government says, that doesn't mean you're free to disregard them. Because if every state felt free to disregard federal law, we wouldn't have a country anymore."

The latest examples of Arizona's effort to challenge the federal government would affect how schools and hospitals treat everyone who comes through their doors.

SB 1405 would require hospitals to check the legal status of a patient if the patient was unable to show proof of health insurance. If the hospital determined the patient was an illegal immigrant, workers would have to notify law enforcement.

SB 1611, an omnibus bill the Senate Appropriations Committee passed Tuesday night, tackles a variety of issues. Among other things, it would force public and private K-12 schools to require enrolling students to provide proof of their legal status, such as a U.S. birth certificate or passport. If the student failed to provide the documents, the school would have to notify law enforcement.

It also would ban illegal immigrants from public housing.

Both bills now go to a vote of the full Senate.

But their success isn't ensured.

Several of the more moderate Senate Republicans have voiced dislike for the bills, saying they are a distraction from the more important efforts to bring jobs and restore the state's economy.

And once they leave the Senate - where President Russell Pearce, R-Mesa, helped move them through - their chances diminish.

House Speaker Kirk Adams, R-Mesa, has made it clear that the budget and jobs are his priority. And, in the House, he will decide which committee, if any, hears the immigration bills.

Federal precedent

If the bills became law, there is no guarantee they would go into effect. Several of the bills are expected to face legal challenges based on their constitutionality, particularly the portion of SB 1611 that would require proof of legal status to enroll in school.

Texas tried to deny public-education funding for illegal immigrants in 1975, but the U.S. Supreme Court overturned that law in its 1982 Plyler vs. Doe decision, saying it violated the 14th Amendment's guarantee of equal protection under the law.

But Pearce said Plyler's 5-4 decision is ripe for reconsideration.

"It's not the law of the land when a Supreme Court issues a bad decision," Pearce said. "It's to be challenged and overturned."

Kareem Crayton, a political scientist and associate professor of law at the University of North Carolina-Chapel Hill, said the court based its opinion on the "notion that this was a population that was being unduly targeted without sufficient justification on the part of the state."

"That was a very different Supreme Court than the one that exists now," Crayton said.

Pearce said he doesn't believe the Plyler case applies because his bill doesn't forbid districts from teaching illegal immigrants; it just requires them to get documentation and notify police if it isn't produced.

Sen. Kyrsten Sinema, D-Phoenix, said the Plyler ruling would apply to this bill.

"That is the supreme law of the land right now," she said. "I understand there are those who have an interest in changing that, but it is the current Supreme Court decision."

Sinema said banning illegal immigrants from public housing also violates federal statute.

"We got a letter last August from HUD (Housing and Urban Development) specifically outlining what part of that legislation is unlawful under federal law," she said.

And the hospital bill may face federal challenges as well, Sinema said.

Under the federal Emergency Medical Treatment and Active Labor Act, hospitals are required to perform a medical examination for anybody who seeks care at an emergency room. If the person needs emergency care, health workers must treat and stabilize the person or transfer the patient to another hospital or health facility.

Proponents have said that illegal immigrants cost taxpayers hundreds of millions of dollars through health care. However, it's difficult to calculate because hospitals and health-care groups receive a variety of federal, state and local funds.

Hospitals oppose the bill.

"It makes no sense to me," said Peter Fine, CEO of Banner Health, Arizona's largest hospital chain. "I'm not sure why hospitals should own the responsibility of verifying a person's citizenship."

Political rationale

In November, Arizonans voted to keep Jan Brewer as governor and elected a Republican supermajority to the House and the Senate. Many of the newly elected lawmakers were self-proclaimed "tea party" candidates who aligned themselves with the more conservative side of the party and supported SB 1070.

Sen. Andy Biggs, R-Gilbert, has served in the Legislature since 2003, although this is his first term in the Senate.

"(The Legislature) now consists of a very different makeup than when I first started down here," he said. "The people elected here made very specific promises dealing with budget issues, fiscal issues, economic issues, as well as illegal-alien issues."

He said supporting these bills upholds those vows.

Sen. Sylvia Allen, R-Snowflake, said Arizonans are demanding these bills.

"People in my district are overwhelmingly telling me they want these issues solved," Allen said.

Supporters of the bills say it comes down to money. Arizona faces a budget gap of $764 million in the current fiscal year and $1.15 billion in fiscal 2012, according to estimates from Brewer's office.

Brewer has said the SB 1070 and federal health-care legal battles are important because they "have huge fiscal impacts" on the state. But she stopped short of offering support for the other federalism efforts bubbling in the Legislature.

As a standard procedure, Brewer doesn't comment on legislation that has not yet made it to her desk.

Bill opponents say the Legislature should focus on bringing jobs to Arizona, not further sullying the state's image.

"This is a Legislature, particularly the Republican majority members, that has promoted jobs as their priority agenda," said Sen. Paula Aboud, D-Tucson. "Yet the effect of their legislation, particularly the immigration legislation, is turning away business in Arizona."